Category Archives: Public law

The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from Theresa May and her flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition to Theresa May’s Brexit deal – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government).

But generally in the great debate on May’s Brexit deal, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

For example, hitherto one would assume that, constitutionally, MPs certainly couldn’t meet together and decide for themselves the form of Brexit they wanted – or if they did, they would have no special powers to issue legislation to ensure it did so transpire. Yet, one of the options discussed by certain soft- and anti-Brexiters was just such a plan if Theresa May’s deal fell: give the matter over to the Liaison Committee, which normally has a minor advisory role, to draft and bring forward legislation that might command support of a majority in Parliament. The Daily Mail described this as: “tearing up the Commons rule book – giving backbench MPs the power to propose legislation instead of the Government”.

Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above). A report on the Supreme Court case is here: What if Eadie was right?

The third day of this case (Oct 18)

James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.

MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.

Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State for those not wishing to read the 580-odd pages of the transcript. It mainly contains Eadie’s second day arguments on behalf of the Government. They look mostly at questions put by the judges in the case and the answers. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here. A report/analysis of the Supreme Court case is here: What if Eadie was right?

The second day of the case (Oct 17)

Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law. I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.

I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without Parliamentary sanction, and thereby remove directly enforceable rights.

Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. mainly to do with Lord Pannick’s first day arguments for the claimants. The links to the transcripts appear at the bottom along with quoted cases and comment. A report/analysis of the Supreme Court case is here: What if Eadie was right?

SALES LJ: Am I right in thinking that you say that the effect of the argument for the government would be that there wouldn’t need to be a repeal of the 1972 Act or section 2 of it, it is just that the content of the obligation in section 2, EU rights, would fall away, because they would cease to be EU rights?
16 LORD PANNICK: Precisely. Your Lordship is very aware and I am not going to enter into any political debate, but your Lordship knows that the government have announced that there is going to be a great repeal bill which is to be produced some time in the next session. I say that the consequence of the defendant giving notification will be that at a point in the future, it is inevitably the case that the United Kingdom leaves the EU and the consequence of that, as a matter of law, is that all of the rights enjoyed under section 2(1) and

page 55
section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say nothing about that. It will not affect those questions. Those rights will fall away as a consequence of the United Kingdom leaving the EU. Because when we leave, there are no treaty obligations. That is the whole point of leaving. And indeed that is the government’s intention. This is not a happenstance, this is the whole point of notification. Notification is intended to remove the current substance of section 2(1) and 3(1). Continue reading →

UK Court of Appeal judges have rejected cases brought by two men against the use of a tough new law brought in to curb the rights of foreigners convicted of criminal offences to challenge deportation orders — the so called “deport first, appeal later” system.

The judgment is a strong endorsement of the new system in an early legal test of the new Section 94B of the Nationality, Immigration and Asylum Act. However, the judges have criticised “misleading” guidance on using the new provision issued by the Home Secretary, Theresa May.

Kevin Kinyanjui Kiarie, born in Kenya, andCourtney Aloysius Byndloss, a Jamaican, have hit the headlines as they challenged the provision that requires some of those facing deportation to leave Britain and make their appeals against deportation from their country of origin.

According to Section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted in 2014 by the new Immigration Act — see provision below) this procedure should occur if the continued presence of the individual in Britain is considered “not conducive to the public good”.

Under the new provision the Secretary of State would certify this to be the case, and that the individuals’ ECHR Article 6 rights (to a fair hearing at court) would not be harmed by pursuing an appeal against deportation “out of country”. Certification can only occur if the the individual would not “face a real risk of serious irreversible harm if removed to the country or territory to which [the person] is proposed to be removed”.

Is Britain’s Deprivation of Liberty Safeguards regime, intended to protect people receiving state care in care homes, hospitals and supported living schemes, turning into an expensive legalistic shambles as a result of a controversial human rights case in the UK Supreme Court? The case, Cheshire West ([2014] UKSC 19 ), was intended to deal with a very real problem: that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights (right to liberty) – even though they are put in place in the interests of the disabled person and even if they are living in a family home. But a couple of bizarre recent cases in the lower courts suggest there is a real problem.

Critics of the Supreme Court position on Deprivation of Liberty Safeguards (DoLS) talk of “gilded cages” and argue that human rights should not intervene too rigidly in the discretion of social workers acting in the best interests of clients lacking capacity. Nevertheless, to have no protections in place or to deny them to people without capacity would clearly be wrong and specifically a breach of Article 5 and Article 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination”.) The Supreme Court came up with a new definition of deprivation of liberty:

“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.”

Compliance or even agreement by the person involved did not prevent the arrangements being a deprivation of liberty. It followsed from this that social services staff had to put care plans under more intense review and particularly that social services departments could not authorise their own social workers’ schemes when they involve domestic supported living arrangments or complex cases – which require the sanction of the Court of Protection. (Note on the judgment here) Once a court has found deprivation of liberty, a regime of expensive legal safeguards must be put in place with oversight by the courts. This is the real issue of controversy as far as local authorities are concerned.Continue reading →

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.Continue reading →